U.S. Challenges Questions By Defense in Bomb Case

By WILLIAM K. RASHBAUM

Published: May 3, 2006

The prosecutor in the case of a Pakistani immigrant charged with plotting to blow up the Herald Square subway station complained yesterday that one of the defense lawyers was using the trial to build a civil case against the Police Department's use of informers in and around the city's mosques.

The prosecutor, Todd Harrison, an assistant United States attorney, raised the issue at the trial of Shahawar Matin Siraj in Federal District Court in Brooklyn, after one of Mr. Siraj's lawyers had spent nearly a day and a half cross-examining the government's key witness, a paid police informer.

Since Monday, the lawyer, Martin R. Stolar, has asked the witness, Osama Eldawoody, about his work as an informer visiting mosques, from July 2003 to August 2004. In earlier testimony, he said he was told to keep ''his eyes and ears open for any radical thing'' at the mosques.

With a calendar projected on the courtroom's wall, Mr. Stolar has questioned Mr. Eldawoody about each visit he made -- sometimes several times a day -- and about what the information he reported to his handler, a detective in the department's intelligence division.

He also has elicited testimony about the payments Mr. Eldawoody received, generally $300 or $400 a week, and suggested that some of his activities, like taking down the license plate numbers of worshipers, were inappropriate.

By yesterday afternoon, the questioning had covered from July 2003 to February of 2004. Mr. Eldawoody, an Egyptian-born nuclear engineer who came to the United States in 1986, answered scores of questions by saying he did not remember. He speaks with a heavy accent, often in phrases, and replied with a single word -- ''Possible'' -- dozens of times, and often said, ''I don't remember specifications.''

In the midafternoon, outside the presence of the jury, Mr. Harrison told the judge, Nina M. Gershon, that Mr. Stolar was trying to suggest to the jury that the department's handling of Mr. Eldawoody and his mosque visits was inappropriate. Mr. Stolar had said before the trial that he would seek to put the Police Department's tactics on trial to prove that his client was entrapped.

''I think they're going to say the Police Department is doing improper things by sending people into mosques -- the whole point of this long, drawn-out examination here,'' Mr. Harrison said. ''It has nothing to do with the criminal case,'' he said.

Mr. Stolar defended his questioning, saying he was seeking to show how Mr. Eldawoody ''gets close to somebody'' to do his job as an informer.

''In addition, the legality of some of his conduct in acting as a confidential informant, a confidential police informant, is open to question,'' he said.

Mr. Stolar argued that some of Mr. Eldawoody's conduct was ''presumptively violative'' of a 1985 consent decree governing the intelligence division.

That decree, which limited police surveillance of political activity and religious services, stems from a civil lawsuit that revealed that police agents recorded a wide range of information about community and political groups. Mr. Stolar was one of the lawyers for the plaintiffs in the lawsuit, which was filed in 1971.

The accord, known as the Handschu agreement for the name of the lead plaintiff, was modified by a federal judge in February 2003 to give the police expanded surveillance powers to investigate terrorism after the 9/11 attacks.

Mr. Stolar said some of what Mr. Eldawoody did would be illegal unless the proper paperwork had been filed. He said he had subpoenaed documents to learn whether it was.

Mr. Harrison countered that the subpoenas were for a civil lawsuit and contended that there had been no violations anyway. ''Mr. Stolar is trying to build material for a civil case -- Handschu involves civil violations, civil remedies,'' he said. He suggested that Mr. Stolar wanted to raise the violations with the jury, something Mr. Stolar denied.

Judge Gershon told Mr. Stolar that she was troubled by the rationale he gave as the basis for his questioning of Mr. Eldawoody, and that his questions must be related to the charges in the case. She said he could ask about the instructions the witness received from the police and the police policies on informers.

''Going beyond that, though,'' she said, ''I'm not going to permit.'' She added, ''I'm just very troubled by what you have said here. You seem to be trying to go beyond this case or use a criminal case for other purposes.''